IMPORTANT POINTS
1. Witnesses if not named in FIR cannot be a ground to doubt their evidence.
2. Mere non-examination of Investigating Officer would not in every case prejudice accused or affect the credibility of prosecution version.

Headnote:(i) Indian Penal Code, 1860-Sections 302/149, 302/109 and 148-Fifteen accused persons, chargesheeted, armed with various weapons came to loot khalihan of PW 15 and as deceased protested, A1 on being exhorted by A6 and A7 fired gun shot at deceased who died-Trial Court convicted 9 out of 15 accused-High Court set aside conviction of all accused rejecting evidence of eye witnesses-Appeal by informant-Appeal decided by High Court in a casual manner and its conclusions were not on sound footing-Witnesses could not be disbelieved merely because they were not named in FIR-Non-examination of investigating officer did not in every case cause prejudice to accused or affected credibility of prosecution version-Practically non-reasoned judgment of High Court was liable to be set aside-Evidence proved that A1 fired one gun shot at deceased but it was fired from distance of 70-80 ft, offence would fall under Section 304 Part II IPC and sentenced to 7 years imprisonment-Definite role assigned to A2, A4, A6 and A7 but accusation against rest not established-Conviction of other accused recorded under Section 304 Part II r/w 149 IPC-Acquittal of rest maintained. (Paras 10 to 17)
       (ii) CRIMINAL TRIAL-Names of witnesses appearing in FIR-That by itself could not be a ground to doubt their evidence-Evidence which is cogent, credible and trustworthy cannot be totally wiped out because of the only circumstance that they were accused in counter case. (Para 10)
       (iii) CRIMINAL TRIAL-Non-examination of Investigating Officer-It would not in every case cause prejudice to accused or affect credibility of prosecution version. (Para 11)
       (iv) Evidence Act, 1872-Section 145-Question of contradicting evidence-Requirements of compliance with Section 145 of the Act. (Para 13)
       (v) Indian Penal Code, 1860-Section 302-Death by gun shot-Only one shot fired from a considerable distance-No rule that Section 302 IPC would not be applicable-It would depend upon nature of gun, position of assailant and victim, obstruction from intermediary objects etc. (Para 16)

JUDGMENT

Arijit Pasayat, J.-Questioning legality of the judgment whereby Division Bench of Patna High Court directed acquittal of 9 respondents, this appeal has been filed by the informant. Originally there were 15 accused persons and 5 of them were acquitted by the trial court. They were accused Nos. 9 to 13. The convicted accused persons filed appeals before the Patna High Court. Crl. Appeal No. 485/ 89 was filed by 9 accused persons, while Crl. Appeal No. 521/89 was filed by one accused.

2. Accusations which formed foundation for the prosecution case are as follows:-

For Nawal Kishore Jha (hereinafter referred to as the deceased ), 9.4.1980 was the last day in this earth. He allegedly suffered homicidal death at the hands of the accused persons. There was longstanding enmity between Rajendra Jha (A-6) and one Deo Chandra Jha and there were several rounds of litigations between them. Raj Kishore Jha (PW 15) was going with the deceased for a walk in their village towards the chowk. They found Bundeo Jha (A-1), Bindeshwar Jha, Rajendra Jha (A-6), Arjun Jha (A-2), Lalo Jha (A-3), Daya Nand Jha (A-7), Parmanand Jha (A-15), Arjun Jha (A-14), Gopal Jha (A-4), Madananand Jha (A-8) and others were armed with various weapons and came to the Darwaja of Deo Chandra Jha to loot his Khalihan. The deceased protested as to why they were doing so. Hearing the protestations, Daya Nand Jha (A-7) and Rajendra Jha (A-6) ordered Bundeo Jha (A-1) to shoot down the deceased. Bundeo Jha (A-1) fired at once from his gun. The pellets hit deceased on the forehead, front portion of the neck and chest and he fell down unconscious. Accused-Daya Nand Jha (A-7) asked the other members of the mob to leave as a murder had been committed. Raj Kishore Jha-informant with the help of Prem Chandra Jha and Kaushal Kishore Jha and others tried to take the deceased to the hospital for treatment but on the way he breathed his last. The informant, therefore, went to the police station to lodge the report. Investigation was undertaken and charge-sheet was placed on completion thereof. The accused persons took the plea as evident from the suggestions given to the PWs and examination under Section 313 of the Code of Criminal Procedure, 1973 (for short the Cr.P.C. ) that on 9.4.1980 at about 5.00 p.m. Sri Kant Jha, the informant along with Deo Chandra Jha, Nawal Kishore Jha and some other PWs and others formed a mob of 50-60 persons and were variously armed and they went to the house of accused-Daya Nand Jha. They asked him to withdraw the case instituted against some of them and started looting wheat and other articles. Many persons from the village assembled there and requested the members of the mob to stop, but they did not listen to them and started pelting stones upon the villagers. In retaliation the villagers also started pelting stones. Deo Chandra Jha who was armed with a gun opened fire. The villagers forced the members of the mob to retreat and while they were doing so, Deo Chandra Jha also retreated towards south-west while still firing. Members of the mob committed theft of valuables and one of the gun fires made by Deo Chandra Jha hit deceased which proved fatal. Total 20 witnesses were examined to further the prosecution version. Out of them Hardeo Jha, Chandra Shekhar Jha, Prem Chandra Jha, Bishwanath Jha, Govind Kumar Jha, Deo Chandra Jha (PWs. 1, 3, 6, 7, 8, and 12 respectively) claimed to be eye witnesses, in addition to the informant. To substantiate its stand the defence also examined 14 witnesses. After considering the evidence on record, the Trial Court found the accusations were not established against 5 persons - Accused-Bundeo Jha (A-1) was convicted for offence punishable under Section 302 of Indian Penal Code, 1860 (in short the IPC ) and sentenced to undergo imprisonment for life. He is also sentenced to undergo RI for 5 years under Section 27 of the Arms Act, 1959 (for short the Arms Act ). Other convicted persons were

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2003 Supreme(SC) 603

IMPORTANT POINTS1. Witnesses if not named in FIR cannot be a ground to doubt their evidence.2. Mere non-examination of Investigating Officer would not in every case prejudice accused or affect the credibility of prosecution version.

Cases Referred (12)

IMPORTANT POINTS
1. Witnesses if not named in FIR cannot be a ground to doubt their evidence.
2. Mere non-examination of Investigating Officer would not in every case prejudice accused or affect the credibility of prosecution version.